Smith v. Conlan

14 Ind. 513

Opinion

Hanna, J.

To the assignment of errors in this case, the appellee answered, first, in the form of a joinder in error; and, second, that the appeal was not taken within three years from the rendition of judgment, &c.

There was no reply to this answer.

Two points are made by the appellants upon this second answer—

1. That the appellee having joined in error, is concluded by that act from setting up the matter attempted to be pleaded in the second answer.

2. If not, then the appellee waived any benefit of said second answer, by not taking a rule against, and requiring a reply from, the appellants thereto.

We cannot concur in this view of the question of practice. The appellee waived the joinder in error by filing the second paragraph of the answer to the assignment of error. Ind. Dig., p. 649. The appellants having submitted the case without replying to or controverting the matters set up in the second paragraph of the answer, perhaps, admitted the truth thereof; but whether that was the effect or not, it appears, prima facie, to be the fact, from an inspection of the record and the indorsement thereon, of the time of filing, that the answer is true, that more than three years had elapsed. This Court, therefore, has no jurisdiction.

Per Curiam.

The appeal is dismissed with costs.